Citation Nr: 1332305	
Decision Date: 10/18/13    Archive Date: 10/24/13

DOCKET NO.  10-13 881	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Whether termination of the appellant's death pension benefits, effective December 1, 2007, was proper.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. McBrine, Counsel



INTRODUCTION

The Veteran served on active duty from February 1952 to June 1953.  He died in October 2007.  The appellant is the Veteran's widow.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin that granted the appellant a death pension effective October 2007, payable from November 2007, and which terminated those benefits on December 1, 2007, based on excessive income.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. As of November 1, 2007, the appellant's annualized countable income was $6,775, slightly less than the maximum annual pension rate of $7,094.

2. As of December 1, 2007, the appellant's annualized countable income of  $14,141 exceeded the maximum annual income limitation for a surviving spouse without dependents of $7,498.


CONCLUSION OF LAW

Termination of VA death pension benefits, effective from December 1, 2007, was proper.  38 U.S.C.A. §§ 1502, 1503, 1521, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.23 , 3.271, 3.272, 3.273, 3.660 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122   (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).


Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary in 2008.  See 73 Fed. Reg. 23353  (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). 

In this appeal, the appellant was initially notified in a November 2008 letter of the RO's intention provide her one month of pension benefits, and then terminate her monthly improved death pension benefits due to her receipt of Social Security benefits.  She was given an opportunity to submit evidence and/or arguments as to why the termination of her death pension benefits was improper.  Additionally, after the appellant appealed the termination of her death pension benefits, she and her representative were notified of the reasons for the action, and were afforded the continued opportunity to present evidence and argument with respect to the claim. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed to the appellant.  Further, and as discussed below, the appellant's appeal lacks legal merit.  As the law, and not the facts, is dispositive of the issue on appeal, the duties to notify and assist imposed by the VCAA are not applicable in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter).


Facts and Analysis

The appellant is claiming a pension as the surviving spouse of a Veteran who had qualifying wartime service; as such, she is basically eligible for a rate of pension set by law, reduced by the amount of her countable income.  38 U.S.C.A. § 1541  (West 2002 & Supp. 2012); 38 C.F.R. § 3.23 (2012).  The appellant's payment of death pension benefits was granted effective November 1, 2007, the month after the Veteran's death, and then terminated the following month, December 1, 2007, because the RO determined that her countable income exceeded the maximum applicable rate, effective December 1, 2007. 

Governing regulations provide that payments of any kind from any source shall be counted as income for improved death pension in the 12-month annualization period in which received, unless specifically excluded under 38 C.F.R. § 3.272.  38 C.F.R. § 3.271 (2012).  "Recurring income" means income that is received or anticipated in equal amounts and at regular intervals (e.g., weekly, monthly, quarterly, etc.), and that will continue throughout an entire 12-month annualization period.  The amount of recurring income for pension purposes will be the amount received or anticipated during a 12-month annualization period. 

The rates of pension benefits for the relevant time period were published in tabular form in Appendix B of Veterans Benefits Administration Manual M21-1, and are given the same force and effect as if published in the Code of Federal Regulations. 38 C.F.R. § 3.21 (2012).  The maximum annual pension rate is adjusted from year to year.  Effective December 1, 2006, the maximum annual pension rate for a surviving spouse without dependent children was $7,094.  Effective December 1, 2007, the maximum annual pension rate for a surviving spouse without dependent children was $7,498.  In general, when cost of living increases occur for Social Security payments, VA increases the maximum annual rate of pension by the same percentage.  38 C.F.R. § 3.27.

Medical expenses in excess of 5 percent of the maximum annual pension rate may be excluded from an individual's annual income for the same 12-month period, to the extent that they were paid and unreimbursed.  38 C.F.R. § 3.272(g)(2)(2012).  

It is the responsibility of the recipient of VA benefits to notify VA of all circumstances which will affect entitlement to receive the rate of the benefit being paid, and such notice must be provided when the recipient acquires knowledge that his or her income or other circumstances which would affect his or her entitlement to receive, or the rate of, the benefit being paid.  38 C.F.R. § 3.660(a)(1)(2012). Pursuant to 38 C.F.R. § 3.660(b)(1)(2012), where pension payments were made at a lower rate because of anticipated income, pension compensation may be increased in accordance with the facts found but not earlier than the beginning of the appropriate 12-month annualization period if satisfactory evidence is received within the same or next calendar year.

Taking into account all relevant evidence, the Board finds that terminating the appellant's death pension benefits, effective December 1, 2007, was proper.  As noted above, as of November 1, 2007, the appellant's annualized countable income was $6,775, slightly less than the maximum annual pension rate of $7,094, and therefore the appellant was entitled to a small pension.  Effective December 1, 2007, the maximum annual pension rate for a surviving spouse without dependent children was raised to $7,498.  Starting December 1, 2007, the Veteran's annual income from Social Security benefits, other retirement, and a death benefit, was $15,385, minus medical expenses of 1,244.00, resulting in a net income of $14,141, well in excess of the maximum allowable income for entitlement to a death pension.  Further, there is no evidence since that time indicating any significant change in income which would warrant entitlement to a pension.  Specifically, the appellant noted income in 2008 of $13,968, with no medical expenses, which greatly exceeds the maximum annual pension rate of $7,933 effective December 1, 2008.  As such, there is simply no evidence showing any legal entitlement to a death pension benefit after December 1, 2007.

Where reduction or discontinuance of a running award of improved death pension is required because of an increase in income, the reduction or discontinuance shall be made effective from the end of the month in which the increased income occurred. 38 C.F.R. § 3.660(a)(2) (2012).  However, in this case, the reduction was made not only because the Veteran's income increased in December 2007, but because, on December 1, 2007, the maximum annual pension rate was increased based on Social Security cost of living increases.  As, on December 1, 2007, the legal maximum annual pension rate was increased such that the Veteran no longer qualified for a pension, the Board finds, as the RO did, that her death pension benefits were properly discontinued from that time.

The Board is not unsympathetic to the appellant's situation, and does not dispute her accounting of her significant household expenses, however, the law is clear in this case that such household expenses, other than medical expenses as noted above, cannot be considered in computing the appellant's income, and the evidence clearly shows that the Veteran's income is in excess of the maximum allowable income by law for entitlement to a death pension.

For the foregoing reasons, the Board finds that the termination of VA death pension benefits was proper, and this appeal must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56  (1990).


ORDER

Termination of the appellant's death pension benefits, effective December 1, 2007, based on excessive countable income and Social Security cost of living increases, was proper.  The appeal is denied.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs